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Rule 5. Proceedings Before the Judge or Magistrate.
(a) Appearance Before Judge or Magistrate.
(1) Except when the person arrested is issued a citation for a misdemeanor or a violation and immediately thereafter released, the arrested person shall be taken before the nearest available judge or magistrate without unnecessary delay. This appearance may be accomplished by the use of telephonic or television equipment pursuant to Criminal Rules 38.1 and 38.2. Unnecessary delay within the meaning of this paragraph (a) is defined as a period not to exceed twenty-four hours after arrest, including Sundays and holidays.
(2) If
(i) The judge or magistrate commits the arrested person to jail for a purpose other than to serve a sentence, and
(ii) The jail is situated in a different community from the place where the judge or magistrate committed the arrested person to jail, and
(iii) The arrested person is not represented by counsel, and
(iv) The arrested person has not previously had a bail review, and
(v) The arrested person has no date, time and place established for his or her next court appearance,
then the arrested person shall be taken before a judge or magistrate in the community where the jail is located within twenty-four hours of the person's detention in that jail
(aa) in order for bail to be reviewed, and
(bb) in order to determine if the person is represented by counsel, and
(cc) in order for the counsel to be appointed, if appropriate.
(3) The responsibility for ensuring that the arrested person is taken before a judge or magistrate as specified in subsections (1) and (2) of this section (a) shall be borne equally by
(i) municipal police officers and municipal jail personnel, and by
(ii) state troopers, state jail personnel, and all other peace officers.
No distinction shall be drawn between cases in which arrest was made pursuant to a warrant and cases in which arrest was made without a warrant.
(4) Whenever the person arrested is taken for examination before a judge or magistrate other than the one who issued the warrant, the complaint and any other statement or deposition on which the warrant was granted must be furnished to the defendant and must be communicated to the judge or magistrate before whom the person arrested appears.
(5) Whenever a person arrested without a warrant is brought before a judge or magistrate, a complaint shall be filed forthwith.
(6) Judges and magistrates shall be available at all times to receive bail, and each judge and magistrate individually shall have authority to delegate this duty to the person admitting the defendant to jail, or to such other person as shall in the determination of a judge or magistrate be qualified for this purpose.
(b) Rights of Prisoner to Communicate with Attorney or Other Person. Immediately after arrest, the prisoner shall have the right forthwith to telephone or otherwise to communicate with both an attorney and any relative or friend. Any attorney at law entitled to practice in the courts of Alaska, at the request of either the prisoner or any relative or friend of the prisoner, shall have the right forthwith to visit the prisoner in private. This paragraph does not provide a prisoner with the right to initiate communication or attempt to initiate communication under circumstances proscribed under AS 11.56.755.
(c) Statement by Judge or Magistrate - Right to Counsel - Bail. The judge or magistrate
(1) shall inform the defendant of the complaint and of any affidavit filed therewith, and
(2) shall require that a copy of the complaint and of any affidavit filed therewith be delivered to the defendant if this has not already been done, and
(3) shall inform the defendant
(i) of the right to retain counsel, and
(ii) of the right to request the assignment of counsel if the defendant is unable to obtain counsel, and
(iii) of the right to have a preliminary examination, and
(4) shall inform the defendant that the defendant is not required to make a statement and that any statement may be used against the defendant. The judge or magistrate shall allow the defendant reasonable time and opportunity to consult counsel and shall admit the defendant to bail as provided by law and by these rules.
(d) Initial Determination of Probable Cause.
(1) If the defendant was arrested without a warrant, the judicial officer at the first appearance shall determine whether the arrest was made with probable cause to believe that an offense had been committed and that the defendant had committed it. This determination shall be made from the complaint, from an affidavit or affidavits filed with the complaint, or from an oral statement under oath of the arresting officer or other person which is recorded by the judicial officer. The determination shall be noted in the file.
(2) If the defendant was arrested on a warrant for a failure to appear at a prior proceeding, the court shall determine from the file whether the defendant's initial arrest was pursuant to a warrant and, if not, whether at a prior proceeding the court made an initial determination of probable cause as required by subparagraph (d)(1). If there has been no judicial determination of probable cause, the court shall proceed as under subparagraph (d)(1).
(3) If probable cause is not shown, the judicial officer shall discharge the defendant.
(e) Felonies.
(1) If the charge against the defendant is a felony, the defendant shall not be called upon to plead.
(2) The judicial officer shall inform the defendant of the right to a preliminary examination. A defendant is entitled to a preliminary examination if the defendant is charged with a felony for which the defendant has not been indicted, unless
(A) the defendant waives the preliminary examination, or
(B) an information has been filed against the defendant with the defendant's consent in the superior court.
(3) If the defendant after having had the opportunity to consult with counsel waives preliminary examination, the judicial officer shall forthwith hold the defendant to answer in the superior court.
(4) If the defendant does not waive preliminary examination, the judicial officer shall schedule a preliminary examination. Such examination shall be held within a reasonable time, but in no event later than
(A) 10 days following the initial appearance, if the defendant is in custody, or
(B) 20 days following the initial appearance, if the defendant is not in custody.
With the consent of the defendant and upon a showing of good cause, taking into account the public interest in prompt disposition of criminal cases, the judicial officer may extend the time limits specified in this subsection one or more times. In the absence of consent by the defendant, the judicial officer may extend these time limits only upon a showing that extraordinary circumstances exist and that delay is indispensable to the interest of justice.
(f) Misdemeanors.
(1) The judicial officer shall ask the defendant to enter a plea pursuant to Criminal Rule 11.
(2) If the defendant pleads not guilty, the court shall fix a date for trial at such time as will afford the defendant a reasonable opportunity to prepare.
(Adopted by SCO 4 October 4, 1959; amended by SCO 98 effective September 16, 1968; by SCO 157 effective February 15, 1973, by SCO 165 dated June 25, 1973 and by directive from the Clerk of the Court dated June 28, 1973; renumbered by Amendment No. 3 to SCO 157 effective February 15, 1973; by SCO 427 effective August 1, 1980; by SCO 458 effective May 1, 1981; and by SCO 719 effective August 1, 1986; by SCO 723 effective December 15, 1986; by SCO 1153 effective July 15, 1994; by SCO 1189 effective July 15, 1995; and by SCO 1339 effective June 13, 1998)
Note to SCO 1339: Criminal Rule 5(b) was amended by ยง 17 ch. 86 SLA 1998 to make it clear that the rule does not give a prisoner the right to contact a victim or witness in violation of AS 11.56.755. Section 1 of this order is adopted for the sole reason that the legislature has mandated the amendment.
Cross References
(a)00CROSS REFERENCE: AS 12.25.150
(b)00CROSS REFERENCE: AS 12.25.150
(c)00CROSS REFERENCE: AS 12.30.010
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Copyright 1995-1999 by Touch N' Go Systems, Inc. All rights reserved. No copyright claim is made to the text of the rules.
Last Modified 7/14/1999
